Lier awards the grandstand contract on a ‘variant’ that changes far more than the seats — the Council of State suspends: a variant may not exceed the limits of the specifications
The city of Lier awarded the contract for a new telescopic grandstand in the ‘De Mol’ cultural centre to Jezet Seating on the basis of an optional variant that reduced the number of seats from 453 to 413 and also changed the layout and the escape routes; the Council of State suspended that award under extreme urgency, because the specifications limited the variant to the ‘type of seats’ and the chosen bid exceeded the scope defined there.
What happened?
The city of Lier launched a public supply contract for the demolition of the existing and the supply and installation of a new telescopic grandstand in the ‘De Mol’ cultural centre, awarded by open call for tenders and estimated at 325,000 euros including VAT. The contract was published in the Bulletin of Awards of 4 March 2014 and in the European Official Journal of 7 March 2014. The specifications allowed one variant: the bidder could vary ‘as to the type of seats’, and the technical provisions asked for preferably two seat types with a separate price. The bid form expressly provided room for a price for the base bid and for an optional variant, with a separate inventory (annex D-1 base contract and annex D-2 optional variant). At the opening session of 29 April 2014 seven bidders submitted an offer, including COS and Jezet Seating, both also with a variant. On 18 July 2014 a second award report was drawn up, after an earlier report had been withdrawn. In it Jezet Seating’s base bid was set aside because the grandstand had a higher capacity than the maximum allowed in the specifications; after assessment against the award criteria, Jezet’s variant bid was ranked first, COS’s base bid second and its variant third. By decision of 4 August 2014 the college awarded the contract to Jezet Seating for its optional variant bid; COS was notified on 6 August 2014 and sought suspension under extreme urgency on 20 August 2014. COS argued that the chosen variant exceeded the limits set in the specifications: where the base bid provided 453 seats, the chosen variant — with the ‘Plaza Plus’ seat type instead of ‘Granada Step’ — still had 413, and also entailed changes to the escape routes, the platform height and the layout of the grandstand. According to COS, that variant exceeded the object, nature and scope which the specifications had given to the permitted variant — limited to the ‘type of seats’ — so that it was substantially irregular (article 9, §1, 2° in conjunction with article 2, §1, 10° of the Royal Decree of 15 July 2011), or else constituted a second bid contrary to article 54, §2. The city of Lier replied that the changes were merely the result of choosing a different, wider and higher seat type with thicker cushions, and that the specifications left freedom for the non-technical elements. The Council did not follow this: the specifications did allow a variant ‘as to the type of seats’, but offered no basis to offer a grandstand that deviated from the base bid to that extent, with fundamental changes such as the number of seats, the layout and the escape routes. The contracting authority thereby appeared to have breached the cited provisions and the principles of transparency and equality, all the more so because it had not declared COS’s variant irregular and had even ranked that base bid second. The first branch of the first plea was serious to the extent discussed. The Council ordered the suspension of the execution of the award decision of 4 August 2014 under extreme urgency and reserved the decision on costs.
Why does this matter?
An optional variant is not a free pass. The judgment recalls that the authority must define the object, nature and scope of the permitted variant in the specifications, and that both bidders and authority must stay within that frame. Whoever allows ‘type of seats’ as a variant cannot accept that the beneficiary uses that single element to rework the number of seats, the layout and the escape routes as well: the variant then becomes a different design, and that touches the heart of the principles of transparency and equality, because the other bidders could have relied on the same room. For bidders who miss out on a contract, this offers a sharp test: dissect the chosen variant and compare it with the letter of the specifications; if it exceeds the defined scope, the award is vulnerable. The judgment also shows how the authority’s own conduct can turn against it: because Lier had not declared COS’s variant irregular and had ranked that bid second, it was hard to maintain that the beneficiary’s far more extensive variant still fitted the rules. COS’s gain lies not in a final ruling, but in rewinding an award procedure built on an irregular variant.
The lesson
If, as an authority, you open an optional variant, define precisely what falls under it — here ‘type of seats’ — and ensure the variants submitted do not quietly rework the entire design. A variant that changes the number of seats, the layout and the escape routes goes beyond a limitation to the seat type and threatens the principles of equality and transparency. Be consistent too: if you do not declare one variant irregular and even rank it highly, you can hardly defend a far more extensive variant from another bidder as regular. If you are a bidder and lose to a ‘variant’ that seems too broad, set it against the text of the specifications: if it exceeds the defined object, nature or scope, you can invoke its substantial irregularity, or argue that it is in reality a second bid.
Ask yourself
Have you defined the object, nature and scope of the permitted variant sharply enough in the specifications, so that it is clear what a bidder may and may not change? Does the chosen variant stay within those limits, or does it in fact rework the whole design (number of seats, layout, escape routes)? Are you consistent in assessing the variants of the various bidders, or do you treat comparable deviations differently? And as a bidder: did you really compare the winning variant with the letter of the specifications before deciding whether an action is worthwhile?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →